Norris v Government of United States of America  UKSC 9 (24 February 2010)
The UK Supreme Court has held that the extradition of a mentally and physically fragile 66-year-old did not contravene the right to respect for private and family life under art 8 of the European Convention on Human Rights.
The United States sought the extradition of Norris in relation to criminal charges for price fixing and obstruction of justice. Norris resisted extradition on the basis that it would contravene his right to respect for private and family life.
Before retiring in 2002, Norris was the CEO of Morgan Crucible plc. Morgan and its subsidiaries became involved in an illegal price fixing scandal in the United States and were ultimately fined a total of $11 million. While US authorities granted immunity to most of Morgan’s senior executives, Norris was not granted any such immunity. A grand jury indicted Norris on one charge of price fixing and three charges of obstructing justice. The obstruction charges arose because, after becoming aware that the US authorities were investigating, Norris had methodically set about concealing or destroying the documentary evidence of the price fixing arrangement.
There was no question that the extradition would interfere with Norris’ private and family life. Equally, there was no doubt that the extradition was in accordance with the law. The only issue that arose for the Court’s consideration was whether the interference with Norris’ right to private and family life was ‘necessary in a democratic society…for the prevention of disorder and crime’.
The result turned on the question of proportionality; that is, did the interference with Norris’ rights fulfil a ‘pressing social need’ and was it proportionate to the legitimate aim relied upon to justify the interference?
The Court noted that art 8 of the Convention had never been successfully invoked to prevent an extradition. Further, the Court referred to the importance of extradition as a means of ensuring retribution for criminal offenders and maintaining international law and order. Accordingly, it was held that ‘public interest…in extradition weighs very heavily indeed’ and the consequences of interference with art 8 rights would have to be ‘exceptionally serious before [it could] outweigh the importance of extradition.’
The Court held that ‘the gravity of the crime’ of which the applicant was accused was a relevant consideration in determining whether the interference was proportionate. The Court noted that ‘the significance [of rejecting an extradition request] will depend on the gravity of the offence’. Norris’ offences were considered to be very grave as, if convicted, he was likely to spend at least 21-27 months in prison.
In this context, Norris had to demonstrate that the consequences of interference with his art 8 rights outweighed the significant public interest in the extradition of those accused of criminal activities. Norris submitted that he was physically and mentally fragile, having suffered depression and prostate cancer in recent years. Additionally, the Court accepted that it was relevant that the extradition would have a negative effect on Norris’ wife. She did not intend to accompany Norris to the US if he was convicted and, accordingly, the impact on her private and family life would be total.
Nevertheless, the Court held that the extradition of Norris was not disproportionate. Rather, if Norris were not extradited to face serious charges in the US, the ‘public interest [in maintaining law and order] would be seriously damaged’.
Relevance to the Victorian Charter
While deportation and extradition decisions are made pursuant to Commonwealth jurisdiction, this case may assist interpretation of the Victorian Charter.
Section 13 of the Charter provides that a ‘person has the right not have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with.’ This decision may inform a Victorian Court’s interpretation of whether the interference with private life is unlawful or arbitrary. The Court’s consideration of whether the interference with Norris’ rights was ‘necessary in a democratic society’ may also be relevant to the interpretation of s 7 of the Charter, which states that a human right may be subject to limits that are ‘demonstrably justified in a free and democratic society’.
The decision is available at www.bailii.org/uk/cases/UKSC/2010/9.html.
Andrew Vincent, Law Graduate, Mallesons Stephen Jaques Human Rights Law Group